State of Louisiana v. James Carol Bertrand

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 12-698

STATE OF LOUISIANA

VERSUS

JAMES CAROL BERTRAND

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 88689FB
HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

REVERSED; SENTENCE VACATED AND SET ASIDE; AND JUDGMENT
OF AQUITTAL RENDERED.

Glen Richard Petersen
Hymel Davis & Petersen, LLC
10602 Coursey Boulevard
Baton Rouge, LA 70816
(225) 298-8118
COUNSEL FOR DEFENDANT/APPELLANT:
James Carol Bertrand

Trent Brignac
District Attorney, Thirteenth Judicial District Court
Gregory J. Vidrine
Assistant District Attorney
P. O. Box 780
Ville Platte, LA 70586
(337) 363-3438
COUNSEL FOR APPELLEE:
State of Louisiana

EZELL, Judge.

The Defendant, James Carol Bertrand, was charged in an indictment filed on

June 6, 2011, with the following: 1) extortion, a violation of La.R.S. 14:66;

2) aggravated kidnapping, a violation of La.R.S. 14:44; 3) aggravated kidnapping, a

violation of La.R.S. 14:44; 4) false imprisonment with a dangerous weapon, a

violation of La.R.S. 14:46.1; and 5) false imprisonment with a dangerous weapon, a

violation of La.R.S. 14:46.1. The Defendant entered a plea of not guilty on July 21,

2011. On November 28, 2011, the trial court, on motion of the State, severed counts

three and five. Jury selection followed. The jury returned a verdict on November 30,

2011, of not guilty as to count one, not guilty as to count two, and guilty of the

responsive verdict of false imprisonment, a violation of La.R.S. 14:46, as to count

four.

The Defendant filed a “Motion for New Trial and in Arrest of Judgment.” The

trial court denied the motion on February 16, 2012. The Defendant was subsequently

sentenced to serve four months in parish jail, with all but ten days of the sentence

suspended. The trial court ordered that the Defendant be placed on active supervised

probation for one year upon his release from incarceration.

On March 9, 2012, the Defendant filed a motion to appeal. The Defendant is

now before this court asserting one assignment of error. Therein, he contends the

evidence was not sufficient to support his conviction. After review, we find the

Defendant‟s conviction should be reversed.

FACTS

Kimberly Campbell was arrested and charged with being a principal to

operation of a clandestine laboratory. William Guidroz, Campbell‟s ex-boyfriend and

the father of her child, contracted with the Defendant, a bail bondsman, for

Campbell‟s release from jail. Thereafter, Guidroz sought to be released as the

indemnitor on Campbell‟s bond. The Defendant arrested Campbell on March 25,

2011, and brought her to his office so he could complete the paperwork necessary to

surrender her to police. Subsequently, Guidroz spoke with Campbell at the

Defendant‟s office and attempted to persuade her to sign over custody of their child in

return for his remaining the indemnitor on her bond. Campbell refused. The

Defendant subsequently attempted to surrender Campbell to police, but the police

refused to accept her.

ASSIGNMENT OF ERROR

The Defendant contends there was insufficient evidence upon which to find a

bail bondsman guilty beyond a reasonable doubt of falsely imprisoning his principal

after placing her under arrest.

The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of
the weight of evidence is a question of fact, resting solely with the trier of
fact who may accept or reject, in whole or in part, the testimony of any
witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A
reviewing court may impinge on the factfinding function of the jury only
to the extent necessary to assure the Jackson standard of review. State v.
Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the
function of an appellate court to assess credibility or re-weigh the
evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86.

The Defendant was convicted of false imprisonment, which is “the intentional

confinement or detention of another, without his consent and without proper legal

authority.” La.R.S. 14:46.

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The surrender of an individual by a surety is governed by La.Code Crim.P. art.

345 and La.R.S. 22:1585. Louisiana Code of Criminal Procedure Article 345(A)

provides:

A surety may surrender the defendant or the defendant may
surrender himself, in open court or to the officer charged with his
detention, at any time prior to forfeiture or within the time allowed by
law for setting aside a judgment of forfeiture of the bail bond. For the
purpose of surrendering the defendant, the surety may arrest him. Upon
surrender of the defendant, the officer shall detain the defendant in his
custody as upon the original commitment and shall acknowledge the
surrender by a certificate signed by him and delivered to the surety. The
officer shall retain and forward a copy of the certificate to the court.
After compliance with the provisions of Paragraph F of this Article, the
surety shall be fully and finally discharged and relieved, as provided for
in Paragraphs C and D of this Article, of all obligations under the bond.

Louisiana Revised Statutes 22:1585 provides, in relevant part:

A. Before a breach of an undertaking occurs, a surety or bail bond
producer may surrender a defendant, or the defendant may surrender
himself, to the official to whose custody the defendant was committed at
the time the bail was given. The defendant may be surrendered without a
return of the premium if he changes addresses without notifying his bail
bond producer or surety, conceals himself, leaves the jurisdiction of the
court without the permission of his bail bond producer or surety, fails to
appear in any court at any time, or if the indemnitor seeks to relieve
himself of his obligation on the bond or if the defendant is convicted of a
felony but sentence is not yet imposed. A bail bond producer shall not
surrender a client for nonpayment of a premium until thirty days after the
date the bond is posted.

B. When a bail bond producer or surety surrenders a defendant, the
bail bond producer or surety must file written notification and a statement
of surrender indicating the lawful reason for the surrender. The
statement of surrender must be attached to the surrender or recommit
form with a copy provided to the defendant, committing official, and
court clerk. The bail bond producer must maintain a correct copy of the
statement of surrender form in the defendant‟s file.

David Cedillo testified that on March 25, 2011, he owned Cedillo Bonding. At

that time, the Defendant worked at the company. Cedillo testified that in certain

situations, the law allowed for the surrender of an individual out on bond to any jail or

courthouse in the State. Cedillo also testified that the individual would be brought in,

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a twenty-five dollar fee paid, and the bondsman would then leave. Cedillo further

testified that a surrender form was usually filled out.

Cedillo was with the Defendant when he went to Rollins Road to pick up

Campbell. He indicated the Defendant wore a bail bond badge at that time. Once at

the residence on Rollins Road, Cedillo informed Chad Ardoin, Campbell‟s boyfriend,

who he was. Cedillo testified that Campbell was handcuffed and brought to the

vehicle. On the drive back to the bonding office, Cedillo was dropped off at his other

business. He subsequently met the Defendant and Campbell at the bonding office.

Cedillo testified that he believed Campbell was not taken directly to jail

because they were waiting on Chad Ardoin‟s mother to get off work to see if

Campbell‟s bond could be redone. Cedillo also testified as follows: “[W]e were

trying to keep her out so we were gonna [sic] work with her. She was being nice. We

were being nice. We were trying to keep her out. So we were gonna [sic] try to redo

the bond for her.” Cedillo further testified that if a surety wanted to be released from

a bond, “we try to get in touch with the client and see if we can arrange something

where we can get that person off and . . . re-do the bond.”

Cedillo testified that Guidroz was either at the bonding office when he arrived

or arrived shortly thereafter. Guidroz asked to speak to Campbell, and Campbell

willingly spoke to him. Campbell spoke to Guidroz in an office, with the door open,

for four to five minutes. Cedillo did not recall if Campbell was in handcuffs at that

time. Cedillo testified there was no hollering or screaming between Guidroz and

Campbell. Guidroz and Campbell subsequently went outside to smoke.

Cedillo testified that Guidroz and Campbell went back into the bonding office,

and Guidroz informed him that he was going to remain on Campbell‟s bond. Ardoin

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then walked in, and things were “on the verge of getting ugly.” The Defendant then

walked Campbell toward the courthouse, and Cedillo left.

Cedillo testified that he was at his office approximately thirty minutes. Cedillo

testified that Campbell was not free to leave when she went outside to smoke, and he

was almost sure she was not handcuffed while outside.

In Cedillo‟s opinion, the Defendant did nothing wrong because a bondsman

could arrest individuals out on bond and handcuff them. Cedillo testified there was

nothing that prevented him from taking an individual out on bond to his office to fill

out paperwork. Additionally, Cedillo testified that he never heard the Defendant

threaten Campbell.

Captain Sean Eckhart testified that Campbell had been charged with being a

principal to operation of a clandestine laboratory. Campbell reported that she was

falsely arrested by the Defendant. Captain Eckhart‟s recap of the events confirmed

that given by Cedillo. He further testified that Campbell was turned over to the

Evangeline parish jail at some point.

Captain Eckhart testified that a bondsman could arrest an individual who was in

breach of the terms of bail. Additionally, a bondsman could be armed, use handcuffs

to make an arrest, and transport the individual. Captain Eckhart testified that if the

arrest was unlawful, his opinion would change.

William Guidroz testified he had prior convictions for theft, forgery, and

unauthorized use of a movable. Guidroz also testified that he had a child with

Campbell and he filed litigation regarding custody of the child in March or June of

2011.

Guidroz testified that he paid the Defendant $600 to get Campbell out of jail,

and he still owed him $2,400. After bonding arrangements were made, Guidroz

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changed his mind, as his attorney informed him that, if Campbell was in jail, it would

be easier for him to get his child. Guidroz then asked the Defendant to be released

from the bond. Guidroz further testified that he told the Defendant that he wanted to

be released from Campbell‟s bond unless she gave him custody of their child.

Guidroz testified that he signed a paper at the Defendant‟s office and the

Defendant then went to pick Campbell up. Guidroz returned to the Defendant‟s office

after the Defendant picked Campbell up. Guidroz testified the Defendant called him

and asked if he still wanted to drop the bond. Guidroz was just down the road from

the Defendant‟s office when he received the call, and he stopped by. While there, he

spoke to Campbell in an office for approximately ten minutes. He could not recall if

Campbell was handcuffed. Guidroz told Campbell if she would sign over custody of

their child, he would pay the bondsman. If she did not sign over custody, he would

drop her bond. Guidroz testified the Defendant was present during his discussion with

Campbell. Guidroz then testified as follows: “When I was talking to her he threw it

up like if you‟d just uh . . . sign . . . sign over your rights you‟d be able to go . . . go

home.” Guidroz did not recall the Defendant threatening Campbell. Guidroz testified

that the Defendant told him to make up his mind if he wanted off the bond because, if

he did, the Defendant had to bring Campbell to jail. Campbell did not sign over

custody of the child.

Guidroz testified that he and Campbell were not yelling while in the office.

Additionally, no one forced Campbell into a room with him, and no one closed the

door and left her in the room with him. Guidroz could not recall if Campbell was

handcuffed. Guidroz further testified that the Defendant allowed Campbell to use the

telephone.

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Chad Ardoin testified that he was engaged to Campbell on March 25, 2011.

The Defendant went to his residence on that date. The Defendant told Ardoin he was

there to pick up Campbell for revocation of her bond because Guidroz had asked to be

removed from the bond. The Defendant was armed and followed Ardoin into his

parents‟ house and into the back bedroom. Ardoin testified that he attempted to

discuss the matter with his father and the following occurred:

[W]e were pretty much shook down as to all we need is a little money,
whatever you can get and just this or that, however much you have on
hand, and make all this go away. We don‟t have to pick her up today.
All we need is something to hold her on, just some cash.

Ardoin testified that he took the Defendant‟s statements to mean that, if he

could come up with any amount of money, Campbell would not be arrested that day,

and the bond would have stood. Ardoin testified he was not able to come up with any

money, as he was out of work and his parents were on a fixed income. Additionally,

he would not sell his truck. Ardoin further testified that he mentioned a property

bond, and the Defendant told him it was too late in the day for that. Campbell was

then handcuffed and put in a car. Ardoin subsequently drove to the courthouse to start

paperwork on a property bond. Campbell was not at the courthouse when Ardoin

arrived there. Campbell then called him and told him she was at the bonding office.

Ardoin proceeded to that office. When Ardoin arrived at the bonding office, the

Defendant was at the door of an office and told Ardoin that Campbell and Guidroz

were working their matter out. Ardoin told the Defendant a property bond was in

place.

Richard Ardoin, Chad‟s father, testified that Chad and Campbell lived together.

Richard testified that Chad and Campbell entered his bedroom and told him her bond

had been revoked. Later, the Defendant walked in the room, and he was wearing a

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badge. The Defendant told Richard that Campbell‟s bond had been revoked and

wanted to know how much money they had or could come up with to “make this all

go away.” Richard testified that he told the Defendant he could do a property bond,

and the Defendant questioned him. The Defendant then handcuffed Campbell and left

with her.

Kimberly Campbell testified that she was a convicted felon, having previously

been convicted of introducing contraband into a prison. She also had charges pending

for being a principal to a meth lab. She was arrested for that charge on February 11,

2011. She was also arrested for battery on March 21, 2011. Further, she was on

probation at the time of trial.

Campbell testified that she had a son with Guidroz, with whom she did not

socialize, and she had full custody of the child. Campbell testified she was living with

Chad Ardoin on March 25, 2011, and the two were engaged. There was no litigation

pending between her and Guidroz at that time. Campbell testified that the Defendant

went to her house that day because Guidroz dropped her bond, and the Defendant told

her he would have to arrest her. The Defendant did not tell her she was being arrested

because she had been arrested while on bond or had moved out of state. Campbell

testified the Defendant was armed at that time. Campbell then stated the Ardoins said

they would get a property bond, and the Defendant said there was not enough time for

that. Not long afterwards, the Defendant handcuffed her. Campbell testified that she

thought she was going to jail, but the Defendant took her to his bonding office.

Campbell testified that she did not choose to go with the Defendant.

Campbell testified that the Defendant called Guidroz and told him she was in

custody. She spoke to Guidroz on the phone and was handcuffed at that time. Ten to

fifteen minutes later, Guidroz showed up at the bonding office. She and Guidroz

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spoke in a back office. Guidroz told Campbell he would not drop her bond if she gave

him custody of their child. She refused. The Defendant then told her if she would

sign the papers she would not go to jail that day. She understood that, if she did not

relinquish custody, her bond would be dropped, and she would go back to jail.

Campbell testified that she had one handcuff on at all times, and the Defendant was

armed at all times.

Campbell testified that she called her father from the bonding office seeking

advice. She also testified she was in the office for twenty to thirty minutes. She

further testified that she knew Chad and his mother were going to do a property bond.

Subsequently, Chad showed up and had set up a property bond. Guidroz did not have

any custody papers with him at the bonding office. During the twenty to thirty

minutes, she saw paperwork on the Defendant‟s desk. However, she did not sign any

papers.

Campbell testified that the Defendant brought her to jail, but the paperwork to

drop the bond had not been signed by a judge; thus, the jail refused to take her. The

only document the Defendant needed in order to surrender Campbell was the

statement of surrender form, which was a preprinted form. The Defendant read the

form as follows:

It is understand by the security, the bail bond producer and on behalf of
the Cedillo Bonding, LLC, wish to surrender recommend by the
defendant by authorize James Bertrand as a licensed bond producer,
licensed agent, security and any other Kimberly Campbell to the city or
parish of Evangeline, State of Louisiana. The lawful reason for surrender
is committed to Kimberly Campbell by the indemnitor, William Guidroz,
in parenthesis mark, he printed it out, on the 25th day of March of 2011.

In brief to this court, the Defendant contends there was no legal basis upon

which the jury could have found him guilty of false imprisonment. The Defendant

asserts he had the legal authority, as a bondsman, to arrest Campbell and maintain her

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in custody. In support of his claim, the Defendant cites Taylor v. Taintor, 83 U.S.

366, 371-72 (1872) (footnote omitted) (emphasis added), wherein the Supreme Court

stated the following:

When bail is given, the principal is regarded as delivered to the
custody of his sureties. Their dominion is a continuance of the original
imprisonment. Whenever they choose to do so, they may seize him and
deliver him up in their discharge; and if that cannot be done at once,
they may imprison him until it can be done. They may exercise their
rights in person or by agent. They may pursue him into another State;
may arrest him on the Sabbath; and, if necessary, may break and enter his
house for that purpose. The seizure is not made by virtue of new process.
None is needed. It is likened to the rearrest by the sheriff of an escaping
prisoner.

The Defendant notes that in Carlson v. Landon, 342 U.S. 524, 547, 72 S.Ct.

525, 538 (1952) (footnote omitted), the Supreme Court stated: “When a prisoner is

out on bond he is still under court control, though the bounds of his confinement are

enlarged. His bondsmen are his jailers.” The Defendant further notes that in Cont’l

Cas. Co. v. U.S., 314 U.S. 527, 531, 62 S.Ct. 393, 395 (1942), the Supreme Court

stated:

A bail charged with custody of a defendant, Taylor v. Taintor, 16 Wall.
366, 371, 21 L.Ed. 287, may exercise to the substantial benefit of
criminal administration a high degree of care to prevent default, if he
knows the later fortuitous apprehension of the principal will not relieve
him of the forfeit.

The Defendant argues that Campbell was legally in his custody and gave her

consent to the same when she signed the bond agreement with the surety company.

Additionally, he had the legal authority to arrest Campbell when her indemnitor

requested that he be released from her bond. The Defendant asserts that Campbell

was brought to his office for twenty to thirty-five minutes so that he could complete

the paperwork necessary to surrender Campbell, and this was legal. The Defendant

further asserts that, although the State contends he brought Campbell to his office to

10

extort her child away from her, this contention was not accepted by the jury. The

Defendant asks, if there was no extortion, how could his bringing Campbell to his

office for twenty to thirty minutes be illegal?

The Defendant notes that La.Code Crim.P. art. 345 sets forth no time limitation;

thus, there is no restriction on a surety being allowed to stop at his office to fill out

paperwork or to allow Campbell to work out the details of another bond arrangement.

The State asserts the Defendant‟s claim that he had legal authority to confine

Campbell while “he attempted to persuade her into relinquishing custody of her child”

and that he had her consent are meritless. The State also asserts that a “shakedown

went on for over thirty minutes with [Campbell] in tears.” The State further asserts

the paperwork the Defendant needed to complete at his office was a one-page

preprinted form that required the name of the indemnitor; the name of the bondsman;

the name of the defendant; the City, Parish, and State; the lawful reason for the

surrender; and the date.

According to the State, the Defendant‟s argument suggests that, once bail is

given, a bondsman has unrestricted control and authority over his principal/defendant;

the State contends that the defendant‟s argument is incorrect. The State asserts that

the language of both La.Code Crim.P. art. 345 and La.R.S. 22:1585 is permissive.

The State further asserts the Defendant‟s interpretation that these provisions do not

indicate there are restrictions on a bondsman and a time limit in which to surrender a

defendant after seizing her is clearly wrong and would lead to an absurd result. The

State asserts that, based on the Defendant‟s logic, he could seize Campbell, bring her

to his office, and keep her there handcuffed indefinitely. The State asserts, based on

Taylor, 83 U.S. 366, that only when immediate delivery is impossible may a

bondsman imprison his defendant.

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The State admits the Defendant had the authority to go to Campbell‟s home and

seize her. It asserts the problem occurred when the Defendant failed to promptly

deliver Campbell to her lawful jailers and went to his office for a shakedown of

custody of her son. The State then notes that in Lund v. Seneca County Sheriff’s

Dept., 230 F.3d 196 (6th Cir. 2000), the court said that a bondsman may not violate

federal or state law.

The Defendant contends he did not violate any law by arresting Campbell.

Further, he did not commit a crime by allowing her to attempt to work out her bail

problems at his office or holding her in his office prior to bringing her to jail. The

Defendant then sets forth the following:

Does Appellant break the law by going to his office for only ten
minutes to fill out forms? Does he break the law by allowing his
principal to walk outside with the father of her child to discuss custody
issues? Does the State contend Appellant had no right whatsoever to
bring his principal to his office? Apparently, the State has a problem
with each of these scenarios, but fails to point out any jurisprudence or
legal guidance which draws the bright line that the State has obviously
drawn. With this stance, a bondsman would not be able to stay in a hotel
with his arrested principal three states away. Can a bondsman stop for
thirty minutes to eat a fast-food meal while in route back to the parish of
the prosecution while with a principal who is in his custody? If he does
that, is he guilty of false imprisonment? If he had allowed his principal
to make phone calls at her house before he took her off, all in an effort to
attempt to acquire a new bond or a new indemnitor, would he be guilty of
false imprisonment? Apparently, the State contends exactly that. The
only problem with that position is that it is not countenanced by any law
or jurisprudence that the State can point to. The State seemingly
contends that a bondsman must turn over his charge to the sheriff “at
once” or face the consequences of being prosecuted for falsely
imprisoning that charge. The Supreme Court did not make that leap in its
discussion in Taylor. To the contrary, the court made it quite clear that if
a bondsman could not, for some reason, deliver his charge to the proper
authorities, the bondsman could keep his charge imprisoned until it could
be done. Id., p. 371. The court does not state or suggest that a bondsman
breaks the law by not taking his charge directly to the sheriff, at once,
immediately, forthwith, with no stopping. He is, after all, the jailer of his
fugitive.

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The Defendant further asserts that Campbell consented in advance to the

situation she found herself in, and consent and legal authority were both present in

this case.

Consent

The language found on the bonding documents signed by Campbell state that

the bonding agent had the right to apprehend, arrest, and surrender her. These forms

were not signed by the Defendant or anyone from Cedillo Bonding; however, Guidroz

testified that bonding arrangements were made with the Defendant.

Although Campbell did not want to go with the Defendant when he arrested

her, she consented to such, despite her testimony that she did not read the forms.

Additionally, all testimony indicates that once at the Defendant‟s office, Campbell

agreed to speak with Guidroz.

Legal Authority

The Defendant testified that the paperwork he needed in order to surrender

Campbell had not been completed before he arrested her; thus, he stopped at his office

after arresting her.

This Court has found no criminal cases in Louisiana addressing the duties of a

bondsman to surrender an individual. “Although opinions of the Attorney General are

advisory only and not binding, this court has recognized their persuasive authority,

particularly where no cases on point can be found. Roy v. Avoyelles Parish Sch. Bd.,

552 So.2d 63 (La.App. 3 Cir. 1989).” State in the Interest of J.M., 97-491, p. 4

(La.App. 3 Cir. 10/29/97), 702 So.2d 994, 997.

In La. Atty. Gen. Op. No. 81-253 (1981), the office of the Attorney General

was asked whether a surety who did not bring the principal to the nearest jail could be

arrested for kidnapping. The issues were addressed as follows:

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By analogy to the situation of a peace officer failing to book his
prisoner promptly at the nearest jail, one can arguably determine the
penalties for such conduct on the part of bondsmen. The official
comments to LSA-C.Cr.P. Article 228 indicates [sic] that a violation of
the booking procedures by peace officers would constitute malfeasance
in office under La. R.S. 14:134. 1 However, since bondsmen are not
„peace officers or public officials‟ per se, they could not be charged with
malfeasance. They may however be subject to contempt proceedings or
obstruction of court orders, depending upon the circumstances and
seriousness of the misconduct complained of for failing to properly
surrender their principals. Rf: La. Const. of 1974 Art. V. Section 2;
LSA-C.Cr.P. Art. 17, 20 to 25 and R.S. 14:133.1 as amended.

Accordingly, given the surety‟s statutory power to arrest his
principal for surrender purposes, an impropriety in the booking or
surrender procedure would not constitute kidnapping. This conclusion is
reached based upon the aforementioned analogy and upon the assumption
that there is a surrender of some type. The situation of no surrender at all
could, for sake of argument, cause one to consider such a flagrant
violation as either kidnapping or false imprisonment, dependant [sic]
upon the circumstances of each case.

Id. at pp. 1-2 (footnote added).

In La. Atty. Gen. Op. No. 01-70, p. 2 (2001), the Attorney General stated:

. . . La.C.Cr.P. art. 228 does impose a duty on any “peace officer” to
promptly conduct the arrested defendant to the nearest jail or police
station and cause him to be booked. While bondsmen have not been
considered “peace officers” in Louisiana, it is our opinion that a
bondsman does have a duty to promptly transport the arrested defendant
to the nearest jail within the parish the arrest took place.

In La. Atty. Gen. Op. No. 81-1020 (1981), the Attorney General was asked if

Article 228 required a peace officer, after making an arrest, to transport the arrestee to

the nearest, geographically, jail for booking. The Attorney General‟s opinion

discussed Article 228 as follows:

The purpose for requiring prompt booking of an arrestee is, as your
request notes, to „provide a valuable protection against secret arrests and
improper police tactics.‟ La.C.Cr.P. Art. 228, Official Revision

1
La.Code Crim.P. art. 228(A) provides: “It is the duty of every peace officer making an
arrest, or having an arrested person in his custody, promptly to conduct the person arrested to the
nearest jail or police station and cause him to be booked.”

14

Comment (a). That purpose is served when the arrestee‟s name is
entered on the public record of arrests maintained at the jail, and when he
is given the opportunity to communicate with counsel, family and
friends. This is recognized by the Official Revision Comments to the
same article.

The word „promptly‟ as used in the article has been interpreted by
the courts of this state even before this version of the Code of Criminal
Procedure was enacted. The comments, specificially [sic] paragraph C,
have reference to a 1912 decision of the Louisiana Supreme Court which
held that bringing certain arrested persons to the office of the district
attorney before booking them did not violate the requirement that
arrestees be booked „immediately‟. State v. Canton, 131 La.255, 59 So.
202 (1912).

More recently, the Louisiana Supreme Court has interpreted the
word „promptly‟ as used in article 228 to allow a four hour delay between
arrest and booking, State v. Johnson, 255 La. 314, 230 So.2d 825 (1970),
Aff’d 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972). In State v.
Hopper, 251 La.77, 203 So.2d 222 (1967), the court found in applying
this article‟s predecessor provisions that a delay of twelve hours between
arrest and booking did not violate those statutes.

....

First, the purpose of the statute is achieved as long as the arrested
person is not secreted or held in communicado. Article 230 of the Code
of Criminal Procedure specifically grants the arrestee the right to
communicate with „friends or with counsel‟.

Second, a reasonable delay between arrest and booking has been
allowed by the courts as within the spirit of the article. If delay for
purposes of questioning, as in the Johnson and Hopper cases, is
acceptable, so, too, should be a short delay for transportation.

Third, the arresting officer has a legitimate interest in obtaining
certain information about the arrested subject for reporting purposes and
for other administrative reasons. The convenience afforded the officer by
compiling this information at this own department‟s district station does
not impose any undue hardship on the arrested person.

....

The purpose of article 228 is to prevent the secret arrest and
detention of citizens by the police. This interest must be balanced against
the legitimate concern of the law enforcement community to conduct
proper questioning of arrestees and to acquire information regarding the
identity of those in custody. It is our opinion that the transportation of

15

these arrestees to a district substation or to the parish prison does not
violate the intent of the Code of Criminal Proecure [sic].

Therefore, it is the opinion of this office that persons taken into
custody by sheriff‟s deputies within the geographic boundaries of the city
of Kenner may be transported to the sheriff‟s district stations, the parish
prison, or other appropriate office for processing and booking without
having to first book them into the city jail.

Id. at pp. 1-2.

In State v. Gaspard, 95-1643 (La.App. 3 Cir. 5/8/96), 685 So.2d 151, writ

granted on other grounds and remanded, 96-1390 (La. 6/28/96), 675 So.2d 1100, the

defendant asserted the trial court erred in failing to suppress his confession, as police

were required by La.Code Crim.P. art. 228 to immediately book him into jail after his

arrest, police failed to honor the invocation of his right to remain silent, and he was

led to believe that, if he gave a statement, he would avoid the death penalty. This

court addressed the issue of the timeliness of booking, stating:

La.Code Crim.P. art. 228 requires that the police, having an arrested
person in their custody, “promptly . . . conduct the person arrested to the
nearest jail or police station and cause him to be booked.” This provision
does not mean the police must book the arrestee immediately. Instead,
the police must be prompt in beginning the procedure to bring the
arrestee before a magistrate in order that the arrestee may challenge his
custody. In State v. Hopper, 251 La. 77, 203 So.2d 222 (1967), vacated
and remanded for reconsideration in light of Bruton opinion, 392 U.S.
658, 88 S.Ct. 2281, 20 L.Ed.2d 1347 (1968), conviction affirmed on
remand, 253 La. 439, 218 So.2d 551 (1969), cert. denied 396 U.S. 1012,
90 S.Ct. 545, 24 L.Ed.2d 504 (1970), the defendants were arrested but
not booked in the parish jail until twelve hours later; the Louisiana
Supreme Court found their confinement was legal at all times. Id.

Id. at 155 (alteration in original).

In Landry v. A-Able Bonding, Inc., 75 F.3d 200, 206 (5th Cir. 1996) (footnotes

omitted), a civil rights claim brought pursuant to 42 U.S.C. § 1983, the court stated:

Liability for false imprisonment is not foreclosed by a lawfully
executed initial arrest, for false imprisonment may result from an
unlawful detention following a lawful arrest.

16

Neither La.Code Crim.P. art. 345 nor La.R.S. 22:1585 state that a bondsman

must surrender a defendant promptly; however, the Attorney General‟s Office has

read the article to require prompt delivery. See La. Atty. Gen. Op. No. 01-70.

Additionally, Taylor, 83 U.S. 366, states that a bondsman may seize a defendant and

deliver him up, and, if that cannot be done at once, they may imprison him until it can

be done.

Testimony indicates Campbell consented to be arrested by a bondsman and

surrendered when she signed the bonding paperwork. Additional testimony indicates

the Defendant did not have the paperwork necessary to surrender Campbell prepared

at the time he arrested her. The Defendant then stopped at his office to prepare that

paperwork. Guidroz arrived at the bonding office and wished to discuss the matter of

child custody with Campbell. All testimony indicates that Campbell agreed to speak

to Guidroz. Guidroz informed Campbell that he would remain on her bond if she

relinquished custody of their child, and the Defendant told Campbell she could agree

to a custody arrangement or be surrendered to jail.

When the proposition was presented by Guidroz, the matter of whether

Campbell would be surrendered was unclear. There was no requirement that the

defendant terminate the discussion between Campbell and Guidroz and immediately

surrender Campbell to the authorities. Because Campbell refused to relinquish

custody of her child and Guidroz wanted to be removed from her bond, the Defendant

eventually surrendered Campbell. We find Defendant‟s acts do not constitute false

imprisonment, as he did promptly attempt to surrender Campbell to the proper

authorities. Additionally, a delay of thirty-five minutes before surrender would not be

a violation of a requirement for prompt surrender based on an analogy to cases

regarding prompt booking by the police. See Gaspard, 685 So.2d 151.

17

For the reasons set forth herein, we find the State failed to prove beyond a

reasonable doubt that the Defendant falsely imprisoned Campbell; therefore, the

Defendant‟s conviction should be reversed and his sentence set aside.

DECREE

For the foregoing reasons, we reverse defendant's convictions and vacate

sentence. A judgment of acquittal is rendered.

REVERSED; SENTENCE VACATED AND SET ASIDE; AND
JUDGMENT OF AQUITTAL RENDERED.

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